The Washington Supreme Court last week declined to apply the "plausibility" pleading standard established by the U.S. Supreme Court. The Washington Court in McCurry v. Chevy Chase Bank ruled that the heightened pleading standard under the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal did not apply to Washington State practice. We most recently posted on the plausibility standard under Twombly and Iqbalhere.

The Washington Court declined to apply the heightened federal standard to state practice, it wrote, because it lacked any data going to the policy reasons why it should change the pleading standard. And in any event, rules changes are not for the court--they are for the rule-making process (citing Justice Stevens's dissent in Twombly.) The Washington Court:

The new Fed. R. Civ. P. 12(b)(6) standard [under Twombly and Iqbal] effectively reads "plausible" into the rule, as follows: "failure to state a [plausible] claim upon which relief can be granted." This adds a determination of the likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law does provide a remedy for the conduct alleged by the plaintiff, if that judge does not believe it is plausible the claim will ultimately succeed.

The Supreme Court's plausibility standard is predicated on policy determinations specific to the federal courts. . . . Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.

Currently this court lacks the type of facts and figures (specific to the Washington trial courts) that were presented to, and persuaded, the United States Supreme Court to alter its interpretation of Fed. R. Civ. P. 12(b)(6). . . .

Even if such facts and figures had been presented, this court would be hesitant to effectively rewrite [Washington Civil Rule] 12(b)(6) based on policy considerations. The appropriate forum for revising the Washington rules is the rule-making process. This process permits policy considerations to be raised, studied, and argued in the legal community and the community at large.

The Washington Supreme Court ruled yesterday that a key provision of the state's efforts to control medical malpractice suits violated state constitutional separation-of-powers principles. (Thanks to Carla Tachau Lawrence for the heads-up. We previously posted on the court's ruling that another restriction on state medical malpractice suits, the "certificate of merit" requirement, violated the Washington Constitution's "open courts" provision.)

Yesterday's decision, Waples v. Yi (dissent here), involved Washington State's requirement that plaintiffs give health care providers 90 days' notice of their intention to file a medical malpractice suit. The Washington Supreme Court ruled that the requirement (set by the legislature) ran up against a state court rule (set by the judiciary), and that the requirement must give way. The requirement stated that no medical malpractice suit may be commenced without the 90 days' notice; the court rule states that "a civil action is commenced by service of copy of a summons together with a copy of a complaint . . . ." The court explained the conflict:

Requiring notice adds an additional step for commencing a suit to those required by [the court rules]. And, failure to provide the notice required by [the notice requirement] results in a lawsuit's dismissal, as it did here, even where the complaint was properly filed and served pursuant to the [court rules].

The conflict . . . cannot be harmonized and both cannot be given effect. If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters. "Substantive law 'creates, defines, and regulates primary rights,' while procedures involve the 'operations of the courts by which substantive law, rights, and remedies are effectuated.'" [The notice requirement] involves procedural law and will not prevail over [the court rule].

President Obama on Wednesday signed Senate Joint Resolution 33, which sends the proposed constitution the U.S. Virgin Islands back to the USVI Constitutional Convention for reconsideration in light of Justice Department concerns about it. We previously posted on those concerns--and the history of USVI constitutionalism--here. The Resolution also establishes procedures for Presidential review of the reconsidered constitution.

The Joint Resolution is designed "[t]o provide for the reconsideration and revision of the proposed constitution of the United States Virgin Islands to correct provisions inconsistent with the Constitution and Federal law." What are those offending provisions? According to the Resolution (and taken word-for-word from the first paragraph of the OLC opinion, discussed in the link above):

(1) the absence of an express recognition of United States sovereignty and the supremacy of Federal law;

(2) provisions for a special election on the terroritorial status of the United States Virgin Islands;

(3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry;

The Office of Legal Counsel released a memorandum last week that opined that the Emoluments Clause does not apply to nongovernmental members of the Administrative Conference of the United States (ACUS)--that nongovernmental members do not hold an "Office of . . . Trust" within the meaning of the Clause.

The Emoluments Clause, Article I, Section 9, Clause 8, forbids anyone "holding any Office of Profit or Trust" from accepting, without congressional consent, "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

ACUS was established in 1964 to develop recommendations to improve federal agency procedure. It consists of between 75 and 101 governmental and nongovernmental members, including a Chairman and a Council. The Chair is appointed by the President for a five-year term, with the advice and consent of the Senate; the Council is composed of the Chair and ten other governmental and nongovernmental members, the latter ten for three-year terms without Senate involvement. The Chair may appoint to ACUS, with Council approval, not more than 40 nongovernmental members for two-year terms; they are selected by the Chair to "provide [a] broad representation of the views of private citizens and [to] utilize diverse experiences," and "shall be members of the practicing bar, scholars in the field of adminstrative law or government, or others specially informed by knowledge and expertise with respect to Federal administrative procedure." 5 U.S.C. Sec. 593(b)(6).

ACUS ceased operations in 1995. Congress reauthorized it 2008, and it began operations last year.

The OLC opinion that the Emoluments Clause does not apply to nongovernmental members is, according to the Office, in line with its most recent opinions on application of the Clause to nongovernmental members of advisory committees. But it wasn't always so. As the opinion explains:

In 1993 our Office advised that the Emoluments Clause applied to the nongovernmental members of ACUS. . . . First, we noted that ACUS was a "Federal agency established by statute." Second, although we acknowledged that ACUS was an advisory committee as well as an agency, we cited to our then prevailing view that "Federal advisory committee members hold offices of profit or trust within the meaning of the Emoluments Clause." Third, we noted that the Conference's advice and recommendations "have had (and were intended to have) a significant effect on the Government's administrative processes." Finally, we observed that "under the Conference's own by-laws, its members may be considered to be special government employees subject to Federal conflict of interest statutes and regulations.

Opinion at 3.

Subsequent opinions have read the Clause's requirement for an office of profit or trust more narrowly. In the opinion released last week, the Office ruled that nongovernmental members of ACUS do not fall within this category, because they serve without compensation, they are not given access to classified information, are likely to constitute only a minority of the Conference and the Council, and have authority over only certain limited decisiions of the Chair. The fact that they are special government employees subject to federal conflict of interest rules was not determinative.

The Ninth Circuit upheld the statute, affirming the district judge, noting that the statute had yet to be enforced, and observing that the challenge

is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, andthe factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.

In its discussion of the preemption challenge, the Ninth Circuit opinion reads like an excellent discussion of the doctrine, first distinguishing express and implied preemption, and then discussing the two categories of implied preemption: field preemption and conflict preemption. The Ninth Circuit applied each of these doctrines to find that the state law is not preempted, even when the state law mandates the use of E-Verify when federal law arguably intended that its use be voluntary. The Ninth Circuit also addressed the employers' due process arguments, finding that the state act provided sufficient process for employers to prevent evidence regarding an employee's status.

The Solicitor General's brief "filed in response to the Court’s order inviting the Solicitor General to express the views of the United States," advocated that the "petition for a writ of certiorari should be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by 8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”

The decision by the Court on the scope of federal preemption of state
immigration laws will likely have a significant impact on the outcome
of the litigation challenging Arizona Senate Bill 1070, which has
provoked a firestorm of controversy. My speculation is that the
controversy helped convince the Justices to grant cert and to offer
guidance on the room, if any, for state and local governments to
attempt to regulate immigration and immigrants.

Q: What's next then for the Christian Legal Society and the Alliance Defense Fund? This gets remanded, and you will build a case that this was discriminatory in its application? That only the Christian Legal Society, and not other groups that discriminate in their membership, were singled out?

A: Yes. And I think the record is pretty clear that it was applied in a discriminatory manner. Justice Alito's dissent recites a lot of the evidence.

Q: Why was that not decided in this case? Was it because you wanted to focus on the facial challenge by arguing that this was unconstitutional even in the abstract?

A: I'm not quite sure why the courts did not look at it. We have argued it all along. . . .

I don't want to exaggerate this. The majority opinion does reject one of our arguments, which is that the "all comers" policy, even if it were applied on a non-discriminatory basis, is unreasonable in light of the purpose of the forum. . . .

Q: Now, legally, there is nothing to prevent other universities from deciding to use an "all comers" policy as a way of manipulating religious groups, including and excluding those they wish to include and exclude?

A: It may be harder than they think. When you get around to trying to write down what an "all comers" policy would really look like, it's a fairly daunting task. . . .

[P]racticalities make a blanket "all comers" policy absurd. So they are going to have to have exceptions. Once you get around to writing the exceptions, it's going to be pretty difficult for law schools to come up with an "all comers" policy that really does what they would like it to do.

Q: What is to prevent other schools, colleges, and universities from adopting the "all comers" policy, and using that as a way to defund and delegitimize student groups who require their members to adhere to their values and beliefs?

A: There are really practical considerations. Under the Supreme Court's ruling, an "all comers" policy is only going to be constitutional if it applies to everyone equally. . . .

One of the reasons why the enforcement of the classical non-discrimination policy against student groups caused so few waves on campus is that they were able to use that classic non-discrimination policy to single out religious student groups without touching others. In the "all comers" regime, they have to impact all groups. That's a much more difficult thing to do in the real world than simply single out a disfavored Christian student organization and shove them out the door.

Q: The argument that this puts some religious student groups, groups that have a viewpoint that the university hierarchy does not prefer, at a competitive disadvantage in the religious marketplace of ideas--you do not find that a compelling argument?

A: Not at all. They have every opportunity to get their ideas out there. . . .

What they were looking for was an advantage. What they were hoping to do was to be given the ability to discriminate on the basis of sexual orientation with respect to their leadership and still take government money.

One thing that should be made clear in all the reporting on this case is that this was a case about funding. It was not a case of whether or not you could believe what you want to believe. Luckily, the Court said there is no constitutional right to funding when you are a group that chooses to discriminate on the basis of a category that it is illegal to discriminate against.

In another 5-4 and lengthy decision today,
the Court declared unconstitutional the formation of the Public Company Accounting Oversight Board (PCAOB) created as part of the Sarbanes-Oxley Act of 2002.

As we previously noted in discussing the oral arguments here, the central question in the case
is whether the PCAOB violates separation of powers and the Appointments
Clause--whether its members are subject to sufficient presidential
control, and, in any event, whether they were properly appointed as
principal or inferior officers. Indeed, the PCAOB case pushes the outer edge of what Congress can authorize without intruding on the executive.

The Court held that this "outer limit" had been exceeded. Roberts, writing for the Court, concluded that combining protections for from removing members of the PCAOB is

contrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President’s determination, and whom the Presi­dent cannot remove simply because that officer disagrees with him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.”

(Opinion at 2). This certainly reflected his concerns in oral argument, as we said, "Chief Justice Roberts at one point seemed to endorse the petitioners' theory of "double for cause" removal, calling it "'for cause' squared," while still navigating bedrock cases that uphold independent institutions."

Of great interest should be the Appendices to Breyer's 37 page dissent, which are almost as long as the dissenting opinion itself which Breyer read from the bench. These appendices constitute a cartography of the present federal administrative state, specifically focusing on "double" for cause removals of inferior officers. These support the conclusion of Breyer - - - joined by Stevens, Ginsburg, and Sotomayor - - - that "vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives." Breyer therefore advocated for a "functional approach" as "required" by precedent, recognizing

the various ways presidential power operates within this context—and the various ways in which a removal provision might affect that power. As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective.

(Dissenting Opinion at 9).

Justice Roberts for the Court has an answer:

No one doubts Congress’s power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitu­tion requires that a President chosen by the entire Nation oversee the execution of the laws. And the “‘fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,’” for “‘[c]onvenience and efficiency are not the primary objec­tives—or the hallmarks—of democratic government.’”

(Opinion at 18 [citingBowsher v. Synar]). The Court briefly discusses and rejects the other challenges to PCAOB. Roberts concludes with a citation to The Federalist Papers:

The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magis­trate himself.” The Federalist No. 70, at 478.

While we have sustained in certain cases limits on the President’s removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President’s authority in this way.

Writing for the Court, Justice Ginsburg framed the issue as: "May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agree­ment to open eligibility for membership and leadership to all students?" This is the so-called "all-comers policy." The Court rejected the CLS contention that the policy was not actually an "all-comers" policy but one that targeted certain groups based on religion, noting that "CLS’s assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary­ judgment stage." (Opinion at 8). Ginsburg briefly discusses the importance of stipulated facts, and harshly criticized the dissent:

Time and again, the dissent races away from the facts to which CLS stipulated. See, e.g., post, at 2, 3, 5, 6, 7, 8, 11,24. [footnote omitted] But factual stipulations are “formal concessions . . . that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. [citation omitted].

Opinion at 11. As for CLS's argument that the all-comers policy was a pretext, the Court was again highly critical of the dissent's interpretation:

The dissent’s pretext discussion presents a one-sided summary of the record evidence, post, at 31–34, an account depending in large part on impugning the veracity of a distinguished legal scholar and a well respected school administrator, post, at 3, 5, 6, 7, 8, 9, 11, 24, 32, 34.

(Opinion at 32, n.29). However, Ginsburg did note that the Ninth Circuit might address the pretext argument on remand "if, and to the extent it is, preserved."

The Court concluded "that our limited-public-forum precedents supply the appropriate framework for assessing both CLS’s speech and associa­tion rights." In support, the Court noted that at issue is CLS's ability to access a state subsidy and that thus CLS "faces only indirect pressure to mod­ify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recogni­tion." (Opinion at 15). The Court distinguished the precedents on which CLS was relying (such as Boy Scouts of America v. Dale) as forcing organizations to accept members.

Instead, Ginsburg applied limited public forum doctrine and stressed the "educational context" in which the situation arose. Additionally, Ginsburg noted that CLS had other avenues of expression: "Hastings offered CLS access to school facili­ties to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events," and although "CLS could not take advantage of" specific recognized student organization methods of communication, "the advent of electronic media and social-networking sites reduces the importance of those channels." (Opinion at 24).

Alito's dissenting opinion agrees that limited public forum doctrine applies, although doubts that the "all-comers" policy is view-point and content neutral. The dissent concludes with strong rhetoric:

I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country. Our First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open.” [citation omitted] Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.

By a vote of 5-4, the Court in McDonald v. Chicago today incorporated the Second Amendment right to individual gun ownership it recently recognized in District of Columbia v. Heller against the states through the Fourteenth Amendment. Our analysis of the March oral arguments is here.

The 214 pages of opinions (including a 4 page appendix) will provide much fodder for scholars and litigators. There are not only dissenting opinions by Justice Stevens and by Breyer (joined by Ginsburg and Sotomayor), but the majority opinion provides the fractured decision-making that
can frustrate law students and other readers of Supreme Court opinions. Here are the alignments:

JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.

SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., join.

The plurality - - - Alito, Roberts, Scalia, and Kennedy - - - conclude the due process clause of the Fourteenth Amendment incorporates the Second Amendment. Scalia writes separately, noting "I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guaran­tees in the Bill of Rights 'because it is both long estab­lished and narrowly limited.' [citation omitted]. This case does not require me to reconsider that view, since straightfor­ward application of settled doctrine suffices to decide it."

Only Justice Thomas, concurring (and vital to the Court's majority under the Fourteenth Amendment incorporation conclusion), rejected substantive due process:

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” [citation omitted] and “‘deeply rooted in this Nation’s history and tradition,’” [citation omitted]. I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.

Our discussions of the Privileges or Immunities Clause arguments are here, here, here, here, and here. Although initially an attractive option, most scholars and court-watchers came to believe that the Court would ultimately not reverse The Slaughterhouse Cases and "resurrect" the Privileges or Immunities Clause.

Dissenting, Breyer considers the criticisms by scholars of Heller and asks:

At the least, where Heller’s historical foundations are so uncertain, why extend its applicability? My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree. It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance. And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process.

Justice Stevens' 60 page dissenting opinion argues for judicial restraint, and while he does not explicitly chastise the majority for judicial activism, that is certainly the implication.

We will have additional discussion of the decision in the near future.

After a brief hiatus, Feminist Law Professors Blog is back with a new look. Cyber-space is not quite as "equal" without the blog's perspectives, including its famous "where are the women?" feature that calls attention to law review issues or conferences with a dearth of female participants.

Feminist Law Professors Blog also brings attention to feminist scholarship of interest to ConLawProfs. Its most recent posting, for example, highlights the work of Lisa Pruitt (pictured right) of UC Davis School of Law on "spatial inequality."

As Feminist Law Prof Bridget Crawford writes: "Pruitt's work seeks to revive legal consideration of spatial variations
in provision of government services, a concern that waned following the
Supreme Court’s 1973 decision in San Antonio Independent Schools v. Rodriguez."